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USCIS to suspend premium processing for H-1B petitions

On Friday, March 3, 2017, United States Citizenship and Immigration Services (USCIS) announced that it would suspend premium¹ processing for all H-1B petitions filed on or after April 3, 2017. Because April 3 is the first day that cap subject petitions² can be filed for Fiscal Year 2018, this puts a halt on premium processing for all cap subject cases that will be accepted in April, as well as all other H-1B petitions, both change of employer petitions and extensions. According to the notice, the suspension of premium processing may last as long as six months.

Processing times for H-1Bs have grown over the past 2 years, increasing from an average of two months to nearly a year in many instances. USCIS has struggled with an ever-increasing case load, and has tried several strategies to alleviate the long processing delays. Last summer, extension petitions were routed from the California Service Center to the Nebraska Service Center, increasing the offices that process H-1B petitions from two to three. All new cases continue to be processed at either the California or Vermont Service Center, with all cap exempt³ cases filed in California.The availability of premium processing has long been the only realistic escape valve for the very long processing times. However, as processing times have grown, the number of petitioners opting for premium processing has also grown. This has led to a vicious cycle: non-premium cases are delayed; employers are forced to upgrade cases to premium; as more and more cases move to the premium queue, resources must be shifted away from the non-premium cases to the premium cases; and the non-premium cases are delayed even further.

It appears that the suspension of premium processing is an effort to cut this Gordian knot and give USCIS a chance to bring down processing times across all cases. This is coupled with an overall strategy to increase staff, made possible by the recent increase in USCIS fees. But don’t expect to see instant relief. The hiring and training of new USCIS adjudicators takes time. As new staff comes on board, we hope that USCIS will be able to reduce processing times, better manage priorities, and ultimately, return its case load to equilibrium. But more importantly, USCIS should communicate with the public as to how long this process may take instead of leaving stakeholders to speculate.

More information and transparency from USCIS may alleviate the all too real fear that 10 months will be the new norm for processing H-1B petitions. Individuals for whom a change of status is required need an approval to begin work and will be subject to long periods of unproductive time. And when the ability to travel and renew a driver’s license is at stake, the speculation of the immigration bar as to what might happen simply isn’t enough. These are all legitimate concerns that could be allayed with regular and open communication direct from the agency. USCIS states that expedite criteria will be applied on a case by case basis. However, prior experience does not provide the assurance that deserving cases and individual situations will get needed attention. This leaves employers and their employees with high levels of uncertainty and the resulting anxiety.

We hope that USCIS will inform the public as to how it intends to implement this suspension, and take additional steps to alleviate the legitimate concerns of U.S. employers and beneficiaries that have arisen as a result of this unexpected announcement. Until then, the premium processing suspension will be viewed through a lens tainted by the Executive Orders and the extreme anti-immigrant positions of the Trump Administration. While there is no evidence that this was intended to prevent employers in the United States from hiring high skilled foreign nationals in H-1B status, it certainly does not address the needs of U.S. employers.

USCIS guarantees adjudication of premium processing petitions within 15 calendar days for an additional fee of $1225.00.

Cap subject petitions are filed by employers for new H-1B petitions on behalf of foreign employees who have not previously been granted H-1B status. The cap is 65,000 H-1B approvals each fiscal year, with an additional 20,000 visas available for graduates of U.S. institutions with an advanced degree.

Universities and certain affiliated non-profit institutions are exempt from the H-1B cap.

Porter Wright Morris & Arthur LLP

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